THIS BLOG POST IS ONE OF SEVERAL GUEST EDITORIALS THAT WILL BE PUBLISHED DURING SUNSHINE WEEK (March 15 – 21), HIGHLIGHTING THE NEED FOR MORE GOVERNMENT TRANSPARENCY.
By Donna Green
George Hoyt, a Milford resident, submitted a citizen’s petition to the Milford School Board calling for the resignation of the superintendent and the school board chairman. The petition was submitted on January 14 and according to reporting, the petition was properly completed. The Milford School Board did not place Hoyt’s petition on the school district ballot, nor did they tell Hoyt or his petitioners that they would not be placing it on the ballot. Hoyt learned this eight days after after he submitted his petition when he was notified by the Milford Town Moderator.
According to Hoyt, the Milford School Board meet in a three-hour nonpublic session where they decided not to place his petition on their ballot. Hoyt has received the minutes from this meeting which do not provide the board’s reasoning for this decision. Hoyt has made a Right to Know request for the district’s written legal opinion which he believes was discussed at this nonpublic session. He has also filed a complaint for violation of RSA 39:3 with the New Hampshire Department of Justice.
Right to Know New Hampshire has long fought for more robust nonpublic minutes and has supported the call for verbatim transcripts of secret meetings.
For the local reporting of this story, see
Donna Green is a member of RTKNH. She can be emailed at firstname.lastname@example.org
To help celebrate Sunshine Week, Right to Know NH is publishing this quest opinion.
By Justin Silverman and Laura Simoes
When Dr. Ed Kois left his private practice after 30 years for a position at the Manchester VA Medical Center, he expected most of his new patients’ injuries to have occurred on the battlefield. Instead, he found many of them to have been caused by poor medical care.
Frustrated by the lack of improvements hospital administrators were willing to make, Dr. Kois and several colleagues in 2016 went public. They used whistleblower protections and the power of the free press to tell their story and shine a light on the deplorable conditions at the Manchester hospital. Just hours after The Boston Globe reported a story based on information provided by Dr. Kois, the federal government removed two top officials at the hospital and ordered a full review of the facility.
Dr. Kois died in 2019 and was posthumously honored by the Nackey S. Loeb School of Communications. His insistence on exposing government incompetence should be remembered as we celebrate Sunshine Week—a national celebration of transparency beginning March 15. Whether through whistleblowers like Kois or the use of state and federal freedom of information laws, knowing about our government is crucial to maintaining trust in public institutions.
This trust is essential to our democracy and increasingly, given the current coronavirus (COVID-19) pandemic, our safety. When government authorities provide guidance on how slow the spread of the virus, for example, we need to know the facts and data supporting their remarks. When difficult decisions are made regarding medical care or the curtailment of civil liberties, we ultimately need to know how these decisions were made and why. Only through this transparency can we understand for ourselves if government is acting in our best interest.
The need for trust in our public institutions is why we have whistleblower protections and the New Hampshire Right to Know Law. This law allows citizens to request certain records that can show us how our tax dollars are being spent and why public officials make the decisions they do. The law provides us, for example, payroll records of public employees, police logs, government expense reports, school construction plans and restaurant inspections. The law provides insight into how our government is working so we can know if and how it can be improved.
While Dr. Kois relied on his experience at the VA hospital to inform the community, other citizen watchdogs are using public records to expose questionable public policies. Nashua resident Laurie Ortolano’s use of property records and Right to Know Law requests recently led to an overhaul of the City’s assessing office. Hampton resident David Lang and the Professional Fire Fighters of New Hampshire used public records several years ago to show that public employee health insurance premiums were comingled with other funds. Local municipalities received millions of dollars in refunds as a result.
We are all capable of sharing these kinds of stories, but only if we take steps to strengthen our state’s Right to Know Law. We can do so by:
– Supporting efforts to establish a Right to Know Law ombudsman. Requesters have few remedies when denied public records. An ombudsman would resolve disputes and provide citizens recourse outside an often costly and time-consuming legal process.
– Resisting additional fees. A bill was recently proposed in the state legislature that would have allowed agencies to charge citizens for records that exceed a certain time to produce. Such fees can be prohibitive to many citizens and they undermine the spirit of public record laws. This information, after all, is already owned by the public.
– Demanding transparency. As a New Hampshire resident you are entitled to public records. While the majority of public employees act in good faith, there are some who will abuse exemptions in the Right to Know Law to deny you the right to learn about government. Don’t accept “no” for an answer. Dig in and fight for the information you’re entitled to under the law.
Lastly, consider this Sunshine Week as a reminder of our year-round obligation to government transparency. The burden is on all of us — not just those like Dr. Kois — to fight secrecy each and every day. Trust in public institutions relies on our ability to shine sunlight wherever we find shadows.
Justin Silverman is executive director of the New England First Amendment Coalition.
Laura Simoes is executive director of the Nackey S. Loeb School of Communications
Sunshine Week (March 15-21) is a nationwide celebration of access to public information and what it means for you and your community.
Right to Know NH (RTKNH) is dedicated to raising awareness of your right to a government which is open, accessible, and accountable.
“A popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” – James Madison
“The right of freely examining public characters & measures, & of free communication thereon, is the only effectual guardian of every other right” – James Madison
“Whenever the people are well-informed, they can be trusted with their own government” – Thomas Jefferson
The Sunshine Week panel sponsored by the New England First Amendment Coalition and the Nackey S. Loeb School of Communiations for March 19, 2020, has been postponed. We will update this blog when a new date is scheduled.
NOTE: This event has been postponed. We will update this blog when a new date is scheduled.
The New England First Amendment Coalition and the Nackey S. Loeb School of Communications will present “Keeping the Light On: Holding Government Accountable” from 6 p.m. to 8 p.m. on March 19 at the Loeb School, 749 East Industrial Drive in Manchester, N.H.
The Sunshine Week program is free and open to the public. Refreshments will be served.
The goal of Sunshine Week — March 15-21 this year with related events occurring throughout the month — is to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.
Please RSVP to email@example.com.
GILLES BISSONNETTE | Legal Director for the ACLU of New Hampshire
THE HON. N. WILLIAM DELKER | New Hampshire Superior Court Justice
CASEY MCDERMOTT (moderator) | Reporter at New Hampshire Public Radio
EMILY GRAY RICE | City Solicitor for the City of Manchester, New Hampshire
GREGORY V. SULLIVAN | First Amendment Attorney at Malloy & Sullivan
From NEFAC press release.
Members of panel, left to right: Mark Hayward, Union Leader; David K. Taylor, Right to Know NH; Greg V. Sullivan, NEFAC; Lisa English, NH Asst. AG; Hon. William Delker, Superior Court Justice; Gilles Bissonette, NH ACLU. (Steve Bolton, Nashua Attorney, not shown.) Watch the video here.
These are the remarks by David K. Taylor of Right to Know NH tonight at the Sunshine Week Panel discussion sponsored by the Nackey Loeb School and New England First Amendment Coalition.
Right to Know NH is a citizen’s group working to strengthen the Right to Know across our state. The biggest way we do that is through bills to change the Right-to-Know Law, RSA 91-A. Since we were formed in 2013, we have proposed a handful of bills each year.
Our first bill was a mess. Throughout 2013 we met monthly, going through all of RSA 91-A, word for word, proposing lots of changes. We combined the more than 20 changes into one bill, HB 1156. To our frustration, the House amended it, to throw out all our changes and replace them with a handful of changes to weaken the law. We had to work hard in the Senate to get it killed. Not a good start.
The lesson we learned that first year was to take smaller steps in a few separate bills. This strategy has been more successful.
Each year since 2014, Right to Know NH has proposed, at least in part, a few bills, and each year at least one of those bills have been signed into law. In 2015, 2 out of 3 became law. In 2016, it was 2 out of 4. In 2017, it was 4 out of 5. Last year, it was 1 out of 9. This year, we had a part in 4 bills, and all 4 are still alive.
Here are some of the new provisions in these bills that became law:
– votes to seal non-public minutes must be taken in public, (2015 HB108)
– non-public minutes have the same requirements as public minutes, (2016 HB1418)
– non-public minutes must record how each member voted on each action, (2016 HB1419)
– minutes must record who made and who seconded each motion. (2018 HB1347)
Another one of our bills that passed, encourages meeting notices and minutes to be posted consistently on the web. It only applies to those towns and agencies that already have a website and chose to use the web for this. So, we’d like it to be stronger, but it is a step forward. (2017 HB170)
One bill that passed encourages members of public bodies to help enforce the Right-to-Know Law during a meeting. This provision encourages members to object when they think the law is being violated. If they ask, this objection must be recorded in the minutes, so the public can easily see it. We actually hope that this objection would start a discussion by the public body at the meeting, leading them to fix the violation instead of continuing on. The incentive to object, is the member would not be subject to a personal fine under the law for the violation. (2017 HB460)
Another bill passed, to make it easier for citizens to enforce the Right-to-Know Law in court. A common mistake for citizens who go to court without a lawyer, is to assume that documents filed with a petition will be taken as evidence. Formally, they must ask the court to admit the evidence. This provision makes the court take these documents as evidence unless there is an objection. It effectively changes the evidence from opt in to opt out. This bill also requires a response to a petition to be filed a head of the court date. In my own case, for example, I was handed the answer as I walked into court, so I didn’t even have time to read it before the trial started. This provision makes sure that won’t happen again. (2017 HB252)
We’ve had some repeated failures, too, of course, for example: posting of agendas, notices posted more than 24 hours in advance, and, minimal records of non-meetings.
Two other bills that passed, are part of 2 long-term fights: the first deals with free inspection of records. 2015 HB138/HB606 The second seeks an alternative to going to court to enforce the Right-to-Know Law. (2017 HB178)
In 2015, we proposed a bill to make inspection of records free. (HB138) This is a fundamental goal for Right to Know NH. That year other bills sought to make electronic records free. (HB606) Our bill was combined with these others, and unfortunately, the language got muddled, and courts have since interpreted the language, differently than intended. The fight for free inspection of records continues this year. HB286 was voted to pass 20-0 out of committee and we are hoping that strong support will continue on the floor of the House and into the Senate. However, last year a similar bill, was killed in the Senate.
The big Right-to-Know bill this year is actually multiple bills, all trying to establish an ombudsman to enforce the Right-to-Know Law. This effort started back in 2014, when Harriet Cady of Right-to-Know NH proposed a grievance commission, as an alternative to going to court. This idea failed in 2014 and again in 2015. In 2016, a bill failed that called for a study commission of the idea. In 2017, another bill passed to establish that study commission. That study lead to a bill last year to establish an ombudsman. That bill failed, but lead to the multiple similar bills this year, one in the House, HB 729 and one in the Senate SB 313. Both of these bills have been amended, passed out of committee and on the floor, and are now in the Finance committees.
In the near future, I see 3 major themes for Right-to-Know bills: 1) the ombudsman, 2) bureaucratic obstacles to records, and 3) electronic records.
Though it has been a long fight, there is now a strong consensus in New Hampshire that an ombudsman is the best alternative to court. Both of the ombudsman bills this year will sunset in 4 years. So, even if one passes this year we will need a new bill in 4 years to keep it going. This is also a big change, albeit a good change, so I’m sure we will need smaller bills in the meantime to make it run smoothly.
I’ve already mentioned free inspection of records. Charging for inspection is just one way some towns and agencies make it hard to access records. There are other common obstacles: high copy costs, needless delays, interpreting records requests narrowly, and so on. Delays and unexplained or apparently unjustified denials for records are the most common complaint citizens ask Right to Know NH about.
An idea to address one of these obstacles, is in the federal Department of Justice guidance for FOIA requests. The guidance is that they should make a good faith effort to steer a badly worded request toward readily accessible records. That is, if they don’t have exactly what you asked for, but they do have something you might find useful, they should give you that option. Each of these obstacles is an opportunity for future bills.
The last fertile theme I’ll bring up is access to electronic records. More and more records are electronic, many from beginning to end. A decade ago, RSA 91-A was revised to deal with electronic records. However, this revision did not recognize the internet, and technology has continued to advance quickly.
Electronic records have lots of complexities compared to paper: metadata, file formats, copying to media including the internet, cyber security, redaction, publishing on the web, and many more.
Metadata is information embedded inside electronic records. An example of useful metadata is a formula in a spreadsheet. A spreadsheet with active formulas can allow a citizen to easily try out what ifs. A counter example of metadata are tracked changes in a document. These could be considered a record of internal deliberations in an agency, not subject to public disclosure under executive privilege. But, what if that document is distributed to a quorum of a public body with those changes still tracked. At that point, those changes may become subject to disclosure. In general, may a citizen request metadata? How is metadata redacted? How does an agency even know what metadata is in a record?
There are similar complexities related to file formats such as how does a citizen get electronic data from a proprietary formatted database. Different formats provide different levels of usefulness. For example, an electronic spreadsheet is very different than a paper printout of that spreadsheet or even a PDF. Can a citizen request a specific format? What formats might be available for a particular record? What if the citizen doesn’t have the software needed to read a particular format?
The questions go on: What is the actual cost of copying electronic records? What are the costs of copying over the internet? How can electronic records be effectively redacted but remain in a useful format? How can electronic records be made available for inspection? How do we encourage more electronic records to be published on the web?
We are going to have more questions as electronic records become more pervasive and more advanced. We need to identify, understand, and prioritize these issues so we can propose bills to ensure that public access to governmental records gets stronger in New Hampshire.
Sunshine Week features New Hampshire Right-to-Know discussion
MANCHESTER — In recognition of Sunshine Week, a national initiative to promote open government, the Nackey S. Loeb School of Communications and New England First Amendment Coalition will present a discussion concerning the key to open government in New Hampshire — the state Right to Know Law.
The panel discussion will be held at the Loeb School, 749 East Industrial Park Drive, Manchester, on March 11 from 6:30 to 8:00 p.m. It is free of charge and open to all.
- The Honorable N. William Delker, Associate Justice, New Hampshire Superior Court.
- Lisa English, Assistant N.H. Attorney General, Chief of the Civil Division.
- Gilles Bissonette, Legal Director, American Civil Liberties Union, New Hampshire.
- Steven A. Bolton, Corporation Counsel, City of Nashua.
- Mark Hayward, Investigative Reporter, New Hampshire Union Leader.
- David Taylor, Vice President, Right to Know New Hampshire.
The discussion will be moderated by First Amendment attorney Gregory V. Sullivan, a board member of both sponsoring organizations and corporate counsel to the Union Leader Corp.
Sunshine Week is a national celebration of the citizen’s right to know what their government is up to. Its goal is to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.
Nackey S. Loeb School of Communications